Last night I heard the screaming
Loud voices behind the wall
Another sleepless night for me
It won't do no good to call
The police
Always come late
If they come at all
And when they arrive
They say they can't interfere
With domestic affairs
Between a man and his wife
And as they walk out the door
The tears well up in her eyes
Last night I heard the screaming
Then a silence that chilled my soul
I prayed that I was dreaming
When I saw the ambulance in the road
And the policeman said
"I'm here to keep the peace
Will the crowd disperse
I think we all could use some sleep "(1)

Domestic violence is a problem that must be dealt with for what it
is: a criminal act. The only way to effectively diminish it is through
the full force of the criminal justice system,(2) which must treat
domestic violence the same as it treats crime by strangers. The purpose
of this note is to argue that aggressive prosecution of domestic
violence--at least to the same extent that other violent crimes are
prosecuted--is mandated by the Equal Protection Clause of the Fourteenth
Amendment.(3) Part I will examine the extent of the problems that
pervade the criminal justice system, both historically and in
contemporary dealings with domestic abuse. In Part II, I will explain
the "no-drop policy," discuss its effectiveness and
importance, address the arguments against it, and make some practical
suggestions for its implementation. Part III will review the equal
protection standards already extended to police protection in domestic
violence cases in many jurisdictions. This protection, however, has yet
to be extended to the prosecutorial stage, which limits its
effectiveness. Consequently, in Part IV I will argue that the equal
protection requirement that domestic violence victims receive the same
police protection as victims of other crimes should be extended to the
courtroom. Effective prosecution of these crimes, which is rare without
a no-drop policy, is essential to providing the required equal police
protection to domestic violence victims, and should therefore be
mandated by the Constitution.

I. THE LEGAL SYSTEM'S INADEQUATE RESPONSE

A. Privacy Is Not Worth It

[I]t is an overgenerous assumption that the wife who has been beaten,
poisoned or deserted is still on such terms of delicate good feeling with
her spouse that her testimony must not be enforced lest the iridescent halo
of peace be dispelled by the breath of disparaging testimony. And if there
were, conceivably, any such peace, would it be a peace such as the law
could desire to protect? Could it be any other peace than that which the
tyrant secures for himself by oppression?(4)

Marital peace and privacy have traditionally been the reasons
asserted for leaving domestic violence alone, or at least for not
compelling the victim to testify. Courts and prosecutors distinguish
between public and private harm, label domestic violence as the latter,
and then often refuse to push it through the legal system if the victim
seems reluctant.(5) This can be done through the spousal testimonial
privilege, or, in jurisdictions that have usable exceptions to this
privilege and in cases where the couple is not legally married, by
simply dropping the case at the victim's request. To do so is to
send a message to both the victim and the perpetrator "that
domestic violence is a private matter between the two of them and that
the state does not care to intervene."(6) This creates a situation
in which the victim must push the case forward with great effort for it
to be prosecuted, as though the attack were a tort rather than a
crime.(7) There is a basic assumption at work in the system that
"the state should not intervene in domestic matters."(8)

This attitude ignores the larger social costs of domestic violence,
which involve, inter alia, the societal subordination of women.(9) Each
time a man hits a woman and gets away with it, all women suffer, both
from the risk of harm that has not been prevented, and from the
retardation of the movement toward societal equality. Further, society
as a whole suffers from violence that leaks into the public on a regular
basis at schools, places of employment, and homes of those not otherwise
involved. The marketplace of ideas, including those benefiting
technology, academia, business, etc., suffers the loss of women who feel
confined to their homes or who are otherwise unable to function in the
workplace. Perhaps the most important impact of all occurs within the
millions of "private" homes across the country. When the law
does not govern the private sphere, male dominance and female
subordination thrive.(10) Put simply, "[a] husband must no longer
be allowed to shield himself from legal sanctions for violent crimes by
invoking the fact that the crime was committed in the home."(11)

The law's refusal to interfere with domestic violence is not
just practically unsound, but also reflects those societal attitudes
toward women,(12) that are most in need of change. Criminal laws
establish social norms; they "are the rules by which we define what
we stand for as a society."(13) By reviewing the historical
treatment of women under law, we can see the context from which this
attitude evolved, and how it has been gradually closeted (but not
eradicated) with the advent of the women's movement. In early
common law, women had no identity separate from their husbands.(14)
Consequently, their interests were assumed to be identical.(15) This is
why women were deemed incompetent to testify against their husbands
under the common law rule that prevented self-interested parties from
giving testimony.(16)

The practice of wife beating was legally acceptable throughout most
of history. In fact, it was not made illegal in every state until
1920.(17) In the eighteenth century, William Blackstone codified the
right to wife beating in his authoritative commentaries on the common
law.(18) He stated that because the husband "is to answer for [his
wife's] misbehavior, the law thought it reasonable to intrust him
with this power of restraining her, by domestic chastisement."(19)
Although this tradition is no longer overtly endorsed, the modern law
enforcement system is perpetuating Blackstone's notions by
passively allowing such "domestic chastisement" to
continue,(20) sometimes to the extent of serious injury. The persistence
of these archaic social attitudes and negative stereotypes seriously
weakens the impact of modem anti-violence laws, as most police,
prosecutors, and courts continue to give domestic violence prosecution
low priority.(21) The vehicle that has been used to transport these old
notions to the present--an ideological Trojan horse, if you will--is the
doctrine of family privacy. As such, the doctrine must be carefully
reconsidered, and possibly rejected as overwhelmingly favoring men over
women.(22)

B. The Problem is Still Pervasive

In many jurisdictions today, domestic violence is still not treated
as a real crime.(23) Very few cases ever reach formal adjudication.(24)
The legal system often fails to adequately respond to the pleas of
domestic violence victims until they are seriously injured or
killed.(25) This failure cuts across all levels of the legal system.
This subsection will give examples of how police, prosecutors, judges,
and even legislators have demonstrated a willingness to look the other
way when it comes to spousal abuse.

1. Police.

A Kansas City, Missouri, study of homicides between domestic
partners found that in many of the cases, the police had received
domestic violence complaints and had been to the victims' homes at
least five times before the victim was killed.(26) Police often use two
different standards for probable cause in assault cases--one for regular
assaults, and another, requiring much greater victim injury, for
domestic violence cases.(27)

Tracey Thurman's abuse at the hands of her husband continued
long after she left him. She made numerous calls to the police asking
for help, but received none. After breaking the windshield of
Tracey's car while she was inside, in front of a police officer who
had idly observed him screaming threats at her, Charles Thurman was
convicted of breach of peace and granted a suspended sentence. Tracey
later filed a complaint that Charles had threatened to shoot her, but
the officer would not issue an order for Charles' arrest. One day,
Charles showed up at Tracey's residence demanding to speak with
her. She did not let him inside, and immediately called the police to
report that he was there in violation of his probation. The officer
dispatched to the scene failed to arrive for twenty-five minutes.
Meanwhile, after about fifteen minutes, Tracey went outside to speak to
Charles, and he began to repeatedly stab her in the chest, neck, and
throat, which he was still doing when the officer arrived. Then, in
front of the officer, he dropped the knife, kicked Tracey in the head,
ran inside to grab their son, brought him out, threw him on top of his
bloodied mother, and continued to pace and threaten her. He was not
arrested until Tracey was on a Stretcher, and even then he continued to
threaten her.(28)

Ed Watson physically abused his wife, Nancy, until she filed for
divorce. A few days before the divorce, he threatened her with a knife,
causing her to run next door and call the police. The responding officer
told her, "[I]f you ever call the police again, I will see to it
that you are arrested and you'll never see those two kids
again." Even after Ed beat Nancy with a flashlight to the point of
hospitalization, and forced her son to eat his own vomit, the police
took a report but refused to arrest him. Eventually, Ed came to the
house with a gun and held Nancy and the children hostage for three days.
Nancy called the police after he held the gun to her head and threatened
to kill both her and himself. The arriving officers made a report, but
refused to arrest him or to order him to leave. A month later, when Ed
was following her home in his car, Nancy drove by the police station and
asked for assistance, which an officer assured her he would give. When
she got home, Ed was already there. He locked them all in the house and
raped and stabbed her. After a neighbor called the police, the
responding officer told Nancy that the whole situation was her fault for
marrying Ed. Ed, still not under arrest, committed suicide a few hours
later.(29)

After Jena Balistreri was severely beaten by her husband, the
responding officers stated that she deserved it, and they did not offer
her medical assistance. Later, another officer pressured Jena into
agreeing not to press charges against her husband, whom she then
divorced. Later that year, after her husband crashed his car into her
garage, the police refused to arrest him. When she continued to report
further harassment and vandalism, the police "received her
complaints with ridicule," and even hung up on her once. When a
firebomb was thrown into her house, causing a fire, the police took
forty-five minutes to respond to the 911 call. After asking Jena's
husband a few quick questions, the police determined that he was not
responsible. When she complained that this was an inadequate
investigation, the police told her that she should either move elsewhere
or hire a private detective.(30)

2. Prosecutors.

Many prosecutors think that domestic violence is not as important
as other crimes; some even believe that the victims are to blame.(31)
Prosecutors often give the victim control over the case, making her feel
responsible for any resulting punishment to the batterer.(32) "Some
prosecutors discourage victims tacitly by questioning the victim in a
manner that conveys blame or disbelief, or by actively outlining the
disadvantages of prosecution. A few give victims distorted or incomplete
legal information that thwart [sic] them from seeking the state's
assistance."(33) Finally, and perhaps most commonly, many
prosecutors undercharge cases of domestic abuse by filing as
misdemeanors crimes which actually constitute felonies.(34)

3. Judges.

Judges are insensitive to the realities of domestic violence
surprisingly often. Numerous cases are dismissed simply because the
testifying victim is a minute late, and victims are often asked right in
front of the defendant whether they would mind if he were released.(35)
In one case in Georgia, a judge repeatedly dismissed the cases of a
particular victim of continued abuse, despite the numerous complaints
she had filed with the police.(36) Each time the judge dismissed one of
her cases, he reportedly "mocked," "humiliated," and
"ridiculed" her, and then "led the courtroom in
laughter" as she left.(37) Her husband eventually killed her.(38)

In State v. Taylor,(39) the Louisiana Supreme Court reversed a case
where the district court had denied the state's motion to compel a
victim's testimony, citing the district judge's commentary:

I think if this woman's crazy enough to want to get beat up by her husband
to within an inch of her life, and she wants to go back and marry him,
that's her business. And I couldn't stop her if she wanted to get up on a
ledge and jump off the building, if I wasn't close to her. It's her life.
I've seen the pictures. I think she's crazy. But what am I going to do?(40)

While the Louisiana Supreme Court reversed this opinion, it set up
only a narrow exception to the spousal privilege, holding that a trial
judge may refuse to recognize the privilege when the judge finds that
fear, threats, or coercion caused the victim to assert it.(41) The irony
of this ruling is that "[t]his `sensitive analysis' is thus
entrusted to a trial judge who recited a panoply of myths concerning
wife-beating. A rule resting on a trial court's discretion, when
the trial judge is unaware of the dynamics of domestic violence, is
unlikely to benefit battered women."(42)

Unfortunately, even well-meaning judges who are concerned about
domestic violence often make the mistake of allowing it to escape the
legal system too easily. Cheryl Hanna gives some examples of this in her
article, No Right to Choose: Mandated Victim Participation in Domestic
Violence Prosecutions,(43) drawn from her own experiences as a
prosecutor. In one case, a battered woman invoked her privilege not to
testify against her husband, thinking that he would not beat her again.
Ms. Hanna gathered enough evidence to proceed anyway, and was pleased to
discover that the case would be tried in front of a judge whom she
respected for his concern regarding domestic violence. The judge asked
the victim (who was in the courtroom) why she would not testify, and she
told him that it was a private matter and that she did not want the
state to interfere. At her request, the judge dismissed the case, for
which she thanked him profusely. The beatings continued, however, with
increased severity, until the victim's life basically fell
apart.(44) The judge meant well in respecting her wishes, but this is a
result that we, as a society, should not tolerate, either for this
particular woman, or for women in general.(45)

4. Legislators.

Of course, legislators have a less direct connection with
individual cases, so the horror stories that abound for the other three
categories of the legal system discussed above are not as available
here. However, while lawmakers are in a position to make the proper
enforcement of domestic crimes possible, or even mandatory, they have
generally refused to do so effectively. Around two-thirds of all states
do not have statutes and procedures to ensure prosecution of domestic
violence cases.(46) The spousal testimonial privilege, which can prevent
prosecution of domestic violence charges, is an evidence rule
established by state legislatures. In State v. Taylor,(47) the court
complained that the dynamics of spousal abuse had been ignored by the
evidence rule, forcing the court in the interest of justice to create a
narrow exception in cases of coercion or intimidation. Unfortunately, it
was outside the court's power to create a broader domestic violence
exception to the rule:

The spousal witness privilege ... has been part of Louisiana law for a long
time, and it was recently affirmed by the legislature when it was
considered and included in the Evidence Code adopted in 1992 without any
exception as to victim spouses. As a longstanding and recently affirmed
legislative enactment, the court would not be justified in reading into the
statute an exception purposely omitted by the legislature, regardless of
the court's view as to whether or not such an exception represents better
policy.(48)

Those legislatures that have yet to take a strong stance against
domestic violence continue to tie the hands of numerous judges and
prosecutors who are trying to make a difference. The interplay among all
four of the systems discussed in this subsection creates a situation
where even the caring are often discouraged from effectively enforcing
the law.

C. The Need To Prosecute

A common misconception about domestic violence victims is that they
are making a choice to stay with their abusers. This is evidenced by the
often asked question: "Why does she stay with that man?"
Perhaps more dangerous, it is also evidenced by the arguments put forth
by some feminists(49) for granting women a choice in whether to
prosecute their abusers. There are numerous reasons why women stay with
their abusers or are reluctant to prosecute, and rarely do the reasons
involve a "choice" to allow their unfortunate circumstances to
continue, nor do they stem from some special understanding of how to
best deal with their mates.

First, many of these women feel personally responsible for the
circumstances because they see it as their role to maintain a peaceful
household.(50) Second, the cycle of violence involves three phases:
tension building, acute battering, and loving contrition.(51) The last
phase makes it much more difficult to leave.(52) Third, some battered
women may suffer from learned helplessness, which means that their
earlier failed attempts to get away have taught them that there is
nothing they can do, which discourages further attempts to escape.(53)
Fourth, if the woman is financially dependent on the batterer, it can be
next to impossible to leave, especially if they have children.(54)
Fifth, many victims fear retaliation from the batterer if they try to
leave or prosecute.(55) They are wise to have this concern, too, as it
is merited by the statistics. As Congressman Jim McDermott stated:

Battered women often face the greatest danger when they do try to leave.
Some research indicates that women who leave are at a 75 percent greater
risk of being killed by their batterer than those who stay. Think about
that for a moment: Women who leave must face the prospect of being
killed.(56)

Finally, the power dynamic involved is quite difficult for people
who have never been in such a relationship to understand. The batterer
has the "power, gradually established through use of violence and
intimidation, to coerce his victim to shield him from police and court
intervention."(57)

Incarceration may be the only effective way to relieve the victim
of the batterer's control, as it at least incapacitates him for a
while.(58) In fact, studies have shown that arrest and prosecution of
abusers, in sharp contrast to women trying to leave on their own,
greatly reduce the likelihood of future harm.(59) Former Kern County
District Attorney Ed Jaegels, one of the first prosecutors in California
to get tough on domestic violence, called his firm prosecutorial
approach "murder prevention."(60) Similarly, in San Diego,
which is one of a handful of pilot cities for no-drop prosecution of
domestic violence, Assistant City Attorney Casey Gwinn commented that
"[t]he reality is there are a little more than 100 women alive in
San Diego today because of our prosecution effort."(61)

Finally, while helpful to alleviate some of the pressures victims
face, extralegal support systems, on their own, are not the answer. Some
advocates argue that we should listen to the women's individual
concerns through counseling programs before we impose legal sanctions on
their batterers.(62) They say that jailing the abusers is bad because
"[t]hey just come out more angry,"(63) or "[t]here simply
isn't enough jail space for all the batterers."(64) The
problem with this position is that "it's viewing domestic
violence as less than a regular crime," argues Deputy Los Angeles
City Attorney Alana Bowman, who thinks that batterers should be
prosecuted rather than allowed into diversion programs.(65) These
advocates often treat the battering as just one part of a larger control
framework to be treated with therapy, which ignores the criminality of
the behavior.(66) Moreover, these methods have been proven ineffective
for deterring future violence. A study conducted by the National
Institute of Justice found that the advice/mediation approach left a
victim twice as likely to be beaten again than did arrest of the
perpetrator.(67) This is not to say that these programs are not
important, as they have made a difference in many lives.(68) However,
they must not replace the imposition of criminal sanctions. While legal
intervention is not a panacea for domestic violence, it is an
indispensable part of the effort to mitigate the problem.

II. A NO-DROP POLICY IS THE BEST SOLUTION

It is not enough to say that police should arrest more, prosecutors
should prosecute more, and judges should sanction more, without
providing them all with the tools they need to do so. A no-drop policy
is the most effective tool, if actively implemented, to secure a higher
conviction rate for batterers.

A. What Is a No-Drop Policy?

In many jurisdictions, domestic violence cases are routinely
dropped at the victim's request, or because the victim refuses to
testify.(69) A no-drop policy takes this option away from the victim
once she has filed formal charges against her abuser.(70) Further, it
limits the prosecutor's discretion to drop a case unless he or she
can demonstrate a clear lack of evidence, whereas previously
"victim noncooperation" qualified as sufficient
justification.(71) With a no-drop policy, either the victim must
testify(72) or the prosecutor must use other evidence such as 911 tapes,
other witnesses, and photographs of the injuries--but either way the
case must proceed to trial. Basically, "once the charges are filed,
the state, and not the victim, becomes the party."(73) Such a
policy "conveys an institutional commitment on the part of the
criminal justice system to treat domestic violence as a serious
crime."(74)

A truly effective no-drop policy does, however, leave some room for
prosecutorial discretion with regard to decisions affecting victim
safety. It is important to remember that the goal is to protect women
and save lives. In many cases, it may not be wise to force the victim to
testify (especially where other evidence is available), and in a few
cases, the prosecution itself may place the woman's life in
jeopardy. The key is to make clear the distinction between dropping
domestic violence cases because they are less important and dropping a
rare case to save the victim's life. Still, the policy must present
itself to the public (especially abusers) as firm (which, for the most
part, it would be). Then, at the advice of consulting domestic violence
experts, a truly dangerous case may be discretely directed another way,
such as through a batterer intervention program. To be certain, though,
this must be the rare exception, not the norm, and the only sufficient
justification for dropping prosecution would be victim survival.

B. The Arguments

The no-drop policy has been the single most effective method for
getting domestic violence charges to stick. In jurisdictions without a
no-drop policy, between fifty and eighty percent of all domestic
violence charges are dropped.(75) In contrast, where no-drop policies
are in effect, case attrition ranges from ten to thirty-four
percent.(76) In San Diego, domestic violence-related homicides dropped
from thirty in 1985 (before the policy was implemented) to seven in 1994
(after).(77) This subpart will discuss why this policy is not merely
utilitarian, but actually supportive to victims as well.

1. Responsibility for going forward.

If the victim is compelled to testify, the state takes the blame,
but if she does so voluntarily, she must answer to her batterer for the
decision.(78) Many women fear retaliation if they choose to testify,(79)
and prosecutors have testified before a Texas Senate Committee that
nonspouse (not privileged) victims are usually relieved to discover that
they do not have to make this choice.(80) Once the victims are relieved
of the pressure of this decision, "a variety of counseling programs
are used to ensure that the thrust of the no-drop effort is supportive
rather than coercive."(81) What is more, many batterers even stop
harassing their victims about the process once they realize that the
victims are not responsible for the ease going forward.(82)

2. Empowering the victims.

Some people have argued that taking the control away from the
victim will stifle her own attempts at individual empowerment.(83)
However, "victims may be empowered simply by witnessing a place
where the batterer's control does not extend."(84) Just
watching the men admit what they have done in court and be held publicly
accountable for their acts can be empowering.(85) To allow a victim,
under her abuser's thumb, to stop short his prosecution is to allow
his power and control to extend into the courtroom.(86) It is unlikely
to be empowering to her to discover that his dominion is so vast.

3. Victim in bad position to be making choice.

Some advocates argue that we should value a woman's right to
make her own decisions.(87) Aside from the key fact that other crime
victims are not usually given this option, giving the domestic violence
victims this choice ignores the dynamics of abuse and the fact that
defendants often coerce their partners not to prosecute.(88) Lenore
Walker, who is frequently cited for her insights on domestic violence,
has defined the "battered woman" as one "who is
repeatedly subjected to any forceful physical or psychological behavior
by a man in order to coerce her to do something he wants her to do
without any concern for her rights."(89) By making the victim
choose, the prosecutor gives the batterer a wedge to use against
her,(90) which "virtually invites batterers to intimidate victims
into withdrawing the charges."(91) The victim is left to be
manipulated by her batterer, as well as his attorney.(92) Furthermore,
even without the abuser's active persuasion, a domestic violence
victim has usually been through so much emotional and physical turmoil
that she is unable to make the same rational decisions she might make
during times when her head is more clear.(93) In sum, when we consider
the power that batterers have to make their victims act on their behalf,
we see the need for legal intervention that takes away some of that
control.(94)

4. Effect on the batterer's behavior.

I have already discussed the impact arrest and prosecution have on
the likelihood of future violence. In addition, the very existence of a
no-drop policy itself can have a strong effect on batterers. First, if
the victim cannot control the process, the batterer has less incentive
to exert his control over her after the charges are filed.(95) Second,
prosecutors have observed that batterers are more likely to plead guilty
if the case cannot be dismissed.(96) Furthermore, after one time through
the process, batterers are more acutely aware of the threat of certain
prosecution, which can act as an even more effective deterrent than mere
arrest.(97) A no-drop policy can take a significant bite out of an
abuser's maleficent reign.

5. Unlikely contempt charges.

Some victim advocates have expressed concern that this policy,
combined with an exception to the spousal testimonial privilege for
domestic violence victims, would lead to contempt charges and jail for
the victims, thus revictimizing them.(98) However, unmarried victims
have never had the privilege not to testify, and an investigation by the
Texas Senate Committee on Domestic Violence found no history of contempt
charges against these victims.(99) Furthermore, even with the stricter
combination of no-drop and no privilege, women will be held in contempt
only in extremely rare circumstances. It is far more likely that the
threat of contempt will persuade the women to testify,(100) or that
prosecutors will use other evidence in the event that they refuse to do
so and in those situations in which testifying really would endanger the
victims' lives. One study found that in jurisdictions with no-drop
policies, victims fully cooperated with prosecutors in sixty-five to
ninety-five percent of cases.(101) The only circumstance in which
contempt is likely is if the victim refuses to testify and there is no
other evidence but her testimony. Even then, prosecutors will be
reticent to wield the contempt power unless the violence was severe, in
which case it may be a good idea to remove the victim from the risk of
harm anyway. Indeed, the more enlightened prosecutors now focus on going
forward without the victim's testimony whenever possible. Finally,
the risk that once in a great while a victim will be incarcerated for
contempt is outweighed by the benefit to millions of other women who are
made safer by their abuser's prosecution which may not otherwise
have taken place. Based on the reduction in domestic homicides in
jurisdictions where no-drop policies are already in place, it is
reasonable to conclude that significantly more women will escape murder
than be jailed.

6. Victims no less likely to call police.

Another major concern many battered women's advocates have
expressed is that if prosecution is certain, and victims will have no
control over the process, they will be less likely to call the police in
the first place, thus placing them in greater immediate risk during the
beatings.(102) However, the actual results in jurisdictions with no-drop
policies do not support this fear. In California, where a number of
counties have implemented pro-prosecution policies, there was a
twenty-seven percent increase in domestic violence calls to the police
between 1989 and 1993 in response to the increased law enforcement over
that period.(103) This makes sense when you consider the phone call to
be an instinctive act of survival rather than a calculated decision
based on contemplation of the consequences. If the police are more
responsive, which they would be if they knew that prosecution were
likely and their efforts were not fruitless, women are more likely to
turn to them in their time of need.(104) Besides, it is often people
other than the victim (neighbors, children, etc.) who make the call to
911.(105)

C. The Spousal Testimonial Privilege Exception

It would be less effective to implement a no-drop policy without a
well-written domestic violence exception to the spousal testimonial
privilege,(106) as the policy would be painfully ineffective. If women
can assert the privilege, even in a no-drop jurisdiction, many of the
problems discussed earlier in this note would remain in effect.
Regardless of whether they support a no-drop policy (some may wish to
hold on to prosecutorial discretion), many prosecutors "hail the
removal of spousal immunity in [domestic violence] cases as an important
tool to secure convictions...."(107) In a survey of battered women
in shelters, almost every one of them opined that the privilege
exception was a good idea, stating that they would not testify if given
the choice, but would tell the truth if compelled to testify.(108)
Essentially, this evidence rule can sometimes make the difference
between a strong case and a dropped case.(109) The availability of the
spousal privilege has contributed to the overall reluctance among
prosecutors to bring these charges in the first place.(110)

Not only is it important to have an exception to the spousal
testimonial privilege for victims of domestic violence, but also it is
essential that the exception be written properly to encompass all
possibilities. The need for better written evidence rules is
demonstrated by the number of cases arising in which spousal privilege
was asserted despite the spouse victim exception. For example, a common
charge police use in cases of domestic violence is "disorderly
conduct," which is defined as a crime against the community rather
than a crime against the spouse. As a result of this, victims have been
found incompetent to testify against their husbands under evidence rules
with narrow privilege exceptions for crimes against the spouse.(111) I
recommend an exception to the spousal privilege which reads:

There is no privilege under this rule (1) in proceedings in which one
spouse is charged with a crime against the person or property of the other
or of a child of either, or with a crime against the person or property of
a third person committed in the course of committing a crime against the
other, [or with a crime against the community that resulted in any harm to
the person or property of the other or to a child of either,] or (2) as to
matters occurring prior to the marriage....(112)

D. Nontestimonial Evidence

Finally, it is important under a no-drop policy (or anywhere, for
that matter) for prosecutors to obtain as much nontestimonial evidence
as they can rather than rely on the victim's testimony entirely, as
many do now. This is done in homicide cases all the time, because the
victim is deceased, and the conviction rate is high in such cases. The
use of nontestimonial evidence will reduce the likelihood that the
victim will have to take the stand,(113) which is always good, but it is
especially helpful when she is reluctant. Using other evidence also
treats the crime as a matter of public concern, meriting the use of
investigative resources, rather than a tort with the victim as the
plaintiff.

Using a variety of evidentiary sources is much more effective than
presenting victim testimony alone, even when the victim cooperates
fully. "In the courtroom, judges and juries simply do not always
listen to or understand what women have to say."(114) If their
stories are supplemented with extrinsic evidence, it lends them
credibility in circumstances where they desperately need it. In
addition, the victims themselves often tone down the story in their
testimony, either because they underestimate the seriousness of the
crime, or because they want to protect their abuser or avoid
antagonizing him further.(115) Kern County District Attorney Ed Jaegels
commented, "[i]n terms of getting convictions, it's clear that
[using 911 tapes, photographs of injuries, and police reports to prove
the case] works well."(116) In fact, in cases in which there was a
careful investigation upon the victim's initial complaint,
prosecutors have been able to secure convictions despite adverse
testimony from the victim that she had not been harmed.(117)

Finally, prosecutors are more likely to make an effort to put
together a solid case if they are in a no-drop jurisdiction, as they may
no longer drop a case with a cursory stamp of "victim
noncooperation."(118) Also, police are likely to respond to the
prosecutors' needs with stronger on-scene investigations.(119)
Likewise, "[a]s judges become conditioned to trying cases without
the victim and admitting certain types of evidence under newly-argued
exceptions to hearsay roles, cases become much easier to
prove."(120) Basically, under a no-drop policy, the whole system
works together more effectively.

Although the Supreme Court has yet to rule on this exact point,
many scholars argue and lower courts often hold that the police may not
respond differently to domestic violence than to stranger assaults.
While there is no affirmative constitutional requirement that the state
protect its citizens from crime,(121) the state may not discriminate in
its provision of police protection.(122) If an officer fails to provide
fair and equal protection of the laws, he may be held liable for any
resulting harm under 42 U.S.C. [sections] 1983.(123) This duty to
protect equally applies not only to written police policies, but to the
equal enforcement of otherwise neutral policies as well.(124) The United
States District Court for the District of Connecticut has applied this
doctrine to a police "practice of affording inadequate protection,
or no protection at all, to women who have complained of having been
abused by their husbands or others with whom they have had close
relations," calling it "tantamount to an administrative
classification used to implement the law in a discriminatory fashion."(125)

In dealing with cases of unequal administration of neutral laws,
adverse impact on a particular class is not enough to create a
constitutional violation. It is also necessary to show intent to
discriminate against that class.(126) The discriminatory purpose need
not be the sole impetus for the action; it need only be a motivating
factor.(127) One step toward demonstrating discriminatory purpose is to
make a showing that the police have a policy or custom of providing less
protection to victims of domestic violence than to other assault
victims.(128) In order to establish the existence of such a policy,
plaintiffs usually provide evidence of a "pattern or practice"
of discrimination.(129) Plaintiffs may utilize statistical evidence to
demonstrate that the discriminatory practice is so pervasive as to
suggest intent.(130) In many jurisdictions, there will be strong
statistical evidence of less police protection for domestic
violence.(131)

Intent may also be inferred from stereotype-derived remarks made by
police officers in the course of responding to domestic violence
calls.(132) The Ninth Circuit has held that disrespectful remarks police
made to domestic violence victims, such as a statement that they
"did not blame plaintiff's husband for hitting her, because of
the way she was `carrying on,' ... strongly suggest an intention to
treat domestic abuse cases less seriously than other assaults, as well
as an animus against abused women."(133) Some judges have argued
against this interpretation, noting that the Constitution does not
protect people from politically incorrect remarks, nor does it require
police officers to speak tactfully to crime victims.(134) The primary
problem with this argument is that the plaintiffs in equal police
protection cases are not suing for these remarks or their hurtful effect
on the psyche. They are using them as evidence to show discriminatory
intent that resulted in harm that is in violation of the Constitution.
This distinction is key.

A. The Gender Argument

Some proponents of treating police protection from domestic
violence as an equal protection issue argue that the classification is
gender-based. While it is true that victims of domestic violence are
nearly always women,(135) this argument can be difficult to make.
However, if a plaintiff is able to convince a judge that the police
treatment she received was based on her gender, the judge will use an
intermediate scrutiny standard of review, which would place the burden
on the defendants to show an important government interest in the
classification.(136) In domestic violence cases, showing an important
government interest in disparate handling of violent crimes would be
unlikely. Winning the equal protection case would therefore only require
a showing that the classification is gender-based, and that the class
was treated differently for that reason. Hence, this subsection will
focus only on the issue of whether domestic violence classifications are
gender-based.

In order to demonstrate that a classification that is not facially
gender-based but has an adverse impact on women is worthy of
intermediate scrutiny, a plaintiff must survive the strict test set up
in Personnel Administrator of Massachusetts v. Feeney.(137) Under this
two-prong test, a court will first make sure that the
"classification is indeed neutral in the sense that it is not
[covertly] gender based."(138) If the classification is found to be
gender-based, the court will scrutinize it accordingly. If not, the
court will determine "whether the adverse effect reflects invidious gender-based discrimination."(139)

A classification may be considered covertly gender-based if its
disparate "impact ... could not be plausibly explained on a neutral
ground."(140) In Feeney, the state gave a hiring preference to
veterans to reward them for their service.(141) The Court found the this
to be a neutral goal even though ninety-eight percent of these veterans
were men, in part because the disadvantaged class, nonveterans, was
nearly equally male and female.(142) Domestic violence is
distinguishable from this because the preferred class, abusers, is
nearly all male, and the disadvantaged class, victims, is nearly all
female. Furthermore, the most plausible explanation for a policy that
favors leaving the abusers alone is primarily based on stereotypical
notions of male rule over the household and female subordination to her
partner.(143) These "traditional" gender roles are not an
acceptable justification for a classification. Consequently, the
disparate treatment could be found to be covertly gender-based, which is
all that Feeney requires to get to intermediate scrutiny.

Assuming, arguendo, that the classification is not covertly
gender-based, it could still fail the second prong of the Feeney test
because it "reflects invidious gender-based
discrimination,"(144) which is determined according to its
underlying purpose.(145) A classification has such an invidious purpose
if "the decisionmaker ... selected or reaffirmed a particular
course of action at least in part `because of,' not merely `in
spite of,' its adverse effect upon an identifiable
group."(146) As discussed earlier, discrimination against victims
of domestic violence is often based on the stereotypic belief in the
subordinate role women should play in a relationship. The police
practice of tolerating such violence stems from a time when it was
condoned in order to keep women in this role. As such, the disparate
treatment of domestic violence victims took effect "at least in
part because of" its adverse effect on women.

Further, the Supreme Court has clearly declared unconstitutional those classifications which are based on, or tend to perpetuate,
"archaic and overbroad generalizations" about women.(147)
Mississippi University for Women v. Hogan,(148) for example, held that
excluding men from a nursing school "tend[ed] to perpetuate the
stereotyped view of nursing as an exclusively woman's
job."(149) The Supreme Court held that the discriminatory intent
need not be conscious, but may be based on "the mechanical
application of traditional, often inaccurate, assumptions about the
proper roles of men and women."(150) It is likely that a police
policy of "smoothing over" domestic disputes where the male
was over-disciplining his partner as he would be expected to do in past
centuries, rather than arresting him for his criminal attack, is based
on such assumptions.

B. Treating "Domestic Violence Victims" as a Class

In spite of the arguments in the previous section, it is much
simpler to skip the gender basis argument and focus on the
classification of domestic assaults versus other assaults. Although the
scrutiny standard is more deferential,(151) this method of proving an
equal protection violation can prove less difficult on the whole. This
is because it is easier to prove that there is no legitimate reason for
treating domestic violence victims differently than it is to prove that
the classification of domestic violence is gender-based.(152) This is
not to say that the latter is impossible. As discussed above, there are
some reasonable arguments. It is simply that, as there is no
justification for the distinction, the effort to obtain the higher level
of scrutiny is not necessary. In Bartalone v. County of Berrien,(153)
which dealt with the classification of domestic violence victims, a
United States district court held that "[p]olice officials cannot
refuse to protect a particular class of persons, when under the same or
similar circumstances they would protect others, without a rational
reason for doing so."(154) Despite this deferential level of
scrutiny, the defendants in that case, like those in several other cases
discussed below, were unable to offer any justification at all for
failing to protect the plaintiff from her husband.(155)

In her note, Domestic Violence Victims v. Municipalities: Who Pays
When the Police Will Not Respond?,(156) Lauren L. McFarlane argues that
a slightly different level of scrutiny should be, and often is, applied
to the domestic violence classification than to other arbitrary
classifications.(157) She points out that the "courts have not been
entirely deferential in examining the rationality of policies of
discrimination against victims of domestic violence."(158) While
the "rational basis" test usually results in automatic
approval of any justification, this has not been the case with domestic
violence failure-to-protect cases.(159) McFarlane explains:

A court that suspects irrational negative stereotypes about a group
underlie the adoption of a discriminatory policy may be justified in
applying a rational basis standard that is nondeferential. In this
situation, courts look carefully at the means and ends of the policy, even
when no suspect class is involved and the level of scrutiny is
theoretically minimal.(160)

McFarlane analogizes this to City of Cleburne v. Cleburne Living
Center, Inc.,(161) which applied a nondeferential rational basis
standard of review to a city policy found to be based on
"irrational fears about mentally retarded persons...."(162)
The Court stated that "[p]rivate biases may be outside the reach of
the law, but the law cannot, directly or indirectly, give them
effect."(163) Because "[d]omestic violence victims are not
situated differently from other citizens in their need for protection
from violence," and because "`mere negative attitudes'
about victims of abuse lie behind the police refusal to intervene in
domestic assaults," McFarlane urges that the Cleburne
nondeferential rational basis standard be applied.(164)

C. Court Holdings

While the Supreme Court has yet to make it official, many courts in
domestic violence failure-to-protect cases have held that there was an
equal protection violation, or at least that the plaintiff had stated a
claim upon which relief could be granted.(165) Of all the methods
plaintiffs have used to sue the police for poor response to calls of
domestic abuse, equal protection claims have been the most
successful.(166) The Sixth,(167) Ninth,(168) and Tenth(169) Circuits,
and the Districts of Connecticut,(170) Eastern Pennsylvania.(171) and
Western Michigan,(172) as well as the Supreme Court of Illinois,(173)
have all held to some extent that treating domestic violence differently
from other crime violates, or may violate, the constitutional
requirement of equal protection of the laws.

It is not entirely surprising that the Supreme Court has yet to
resolve this issue. Because the lower courts are holding for the
plaintiffs, they have no reason to appeal to the Supreme Court, and
although the defendants keep losing these cases, it is probably not in
their interests to appeal to the Supreme Court. If the Court ruled that
insufficient response to domestic abuse calls was a constitutional
violation, these same defendants would have numerous new lawsuits on
their hands. Further, they could possibly be required to improve their
practice significantly more than they do with just one lower court
holding against them. As such, we must look to the holdings on the
appellate level for guidance. Based on these holdings, it appears that
the police must provide the same protection for battered women that they
do for other assault victims. These rulings just have yet to spread
completely across the country.

IV. IMPLEMENTATION OF NO-DROP POLICIES IN ORDER TO PROVIDE BATTERED
WOMEN WITH EQUAL PROTECTION OF THE LAWS

As I mentioned at the start, the purpose of this note is to argue
that battered women's equal protection guarantees may depend upon
the implementation of no-drop policies. Based on the first three parts
of this note, this might be done with a simple syllogism: Equal police
protection for domestic violence victims is already constitutionally
required;(174) prosecution, the only way to protect battered women to
the same extent as other crime victims, occurs less frequently without a
no-drop policy;(175) therefore, a no-drop policy is an excellent way to
ensure the equal protection of the laws. Of course, a well-reasoned
argument on such a controversial matter requires more, which is the
purpose of this part.

Equal protection law does extend to prosecutors. In Wayte v. United
States, the Supreme Court held that "although prosecutorial
discretion is broad, it is not `unfettered. Selectivity in the
enforcement of criminal laws is ... subject to constitutional
constraints.'"(176) The Wayte Court held that "[i]n
particular, the decision to prosecute may not be `deliberately based
upon an unjustifiable standard such as race, religion, or other
arbitrary classification.'"(177) The judicial standard to be
applied to prosecutors is quite simple, and can be dealt with in much
the same way as with police protection. "It is appropriate to judge
selective prosecution claims according to ordinary equal protection
standards. Under our prior cases, these standards require petitioner to
show both that the passive enforcement system had a discriminatory
effect and that it was motivated by a discriminatory purpose."(178)

At the prosecutorial level, we should treat domestic violence the
same as we treat other crimes if we are to provide the equal protection
of the laws. This requires the same mandated participation that is
imposed on victims of other crimes. Nonprosecution and underprosecution
(as misdemeanors) of domestic violence charges is tantamount to "de
facto decriminalization of domestic abuse,"(179) which is clearly
unconstitutional. Furthermore, decisions not to prosecute are often
based on the very same archaic and stereotypical notions that many
police officers hold.

The requisite discriminatory intent is just as easy to establish
with regard to the policy of dropping numerous domestic violence charges
as it is with poor police response. As discussed earlier, the extreme
disparate impact itself may be a starting point for intent. Also, the
Supreme Court suggested in Arlington Heights(180) that the historical
background of a policy is relevant in determining whether it has a
discriminatory purpose.(181) The historical background of nonprosecution
of domestic violence charges stems from the doctrine of family privacy.
This doctrine both "constitutes respect for the man's
authority within the home, [and] disempowers women by refusing to
recognize their most basic rights. Given the force of law in battering
situations, a reliance on this doctrine of family privacy must be
understood as an intent to perpetuate male rule within the
home."(182) This historical background should be sufficient to show
an intent to harm women, whether conscious or
"mechanical,"(183) for the sake of an equal protection claim.

The notion of prosecutorial discretion does not change this
analysis. Prosecutors do have a right to determine which cases in
general are worth prosecuting, based on severity and likelihood of
conviction.(184) Care must be taken, however, that they do not make
these choices for the wrong reasons. In Watson,(185) the defendant
police argued that in many of the cases of non-arrest, the police on
duty had not found probable cause, and that this should be taken into
account.(186) The Tenth Circuit responded to this defense as follows:

We find no merit in defendants' argument. Whether or not probable cause
exists is not susceptible to statistical quantification. It represents a
judgment call on the part of the officer or officers at the scene taking
into account the particular circumstances. Although there are clearly
guidelines, much depends on the individual officers' assessment. In the
context of assaults, it is possible or perhaps even probable that officers'
assessments as to whether probable cause exists are colored by whether the
disturbance is domestic or nondomestic. The determination of whether
probable cause exists may be subject to the same allegedly unconstitutional
policy that leads to the discrepancy in arrest rates between domestic and
nondomestic situations here. In other words, the determination of whether
or not probable cause exists and the decision to arrest may present
essentially the same issue.(187)

This argument applies identically to the concept of prosecutorial
discretion as it does to the determination of probable cause. A
prosecutor's personal biases affect his impression of a case and of
whether it is worth going forward. An argument for prosecutorial
discretion in domestic violence cases begs the question to be
determined.

Advocates of equal protection claims against the police often focus
on the fact that the women in many of the cases asked for help and were
still not protected.(188) As egregious as this type of police behavior
is, we must also protect those victims who do not, or cannot, seek
assistance. To do otherwise is to discriminate between levels of
victimization, helping only those who are strong enough to help
themselves, and leaving behind the truly subjugated. This is contrary to
the provision of police protection. Furthermore, "[m]ost crime
victims distrust the system,"(189) but we still require them to
prosecute, or do it without them if necessary. Indeed, in cases where a
domestic violence victim's safety is in jeopardy, making a case
without her assistance should be the prosecutor's main focus.
Prosecutors should be supportive of abuse victims' fears, and when
appropriate refer them to a safe place, "but we should never allow
the victim's level of cooperation to be the sole or primary factor
in deciding whether to prosecute."(190) This would not be in tune
with how we deal with other crime victims, and "[a]llowing women to
step out of the criminal process can further solidify their perception
that the criminal justice system marginalizes their concerns."(191)
Moreover, battery itself cannot legally be consented to,(192) which is
essentially what is happening when we "respect the wishes" of
battered women not to prosecute.

Finally, weak prosecutorial effort causes direct harm to the
victims of domestic violence. It affects the batterer's behavior,
the police response level, and the victim's own choices. First, if
the batterer knows that he will not be held accountable for his actions,
he is more likely to continue the abuse.(193) Studies have shown that
no-drop policies significantly reduce the likelihood of future violence
and murder.(194) Second, police behavior is affected by prosecutorial
decisions. "[P]olice may try to justify their failure to arrest
batterers as a waste of time and resources because battered women often
drop the charges against their assailants. Thus police may defend their
policy as substantially related to the important state interest of using
limited resources most efficiently."(195) This is not really a
defense, but rather a passing of the buck to the District
Attorney's office of responsibility for the discrimination. A
no-drop policy would resolve this dilemma. Moreover, if the police know
that the prosecutor must go forward regardless of the cooperation of the
victim, they will probably conduct more thorough investigations while on
the scene in order to gather better evidence. Third, lack of
prosecutorial effort discourages the victim from asking for help.
Statistics show that one of the primary reasons that women do not report
domestic violence is the ineffectiveness of legal remedies.(196)
Victims' reluctance stems as much from the treatment they receive
from the legal system as from their batterers. Prosecutors' lack of
commitment often "tacitly and overtly discourage[s]
victims."(197) The problem has been called "a self-fulfilling
prophesy."(198) The prosecutors drop because they expect the victim
not to cooperate, and the victims do not cooperate because the
prosecutors seem ready to drop. As such, prosecutorial policy greatly
impacts the problem of domestic violence.

For all of the reasons discussed in this note, the remaining
jurisdictions that have not already done so should implement a no-drop
policy for the prosecution of domestic crimes. This policy should be
implemented in conjunction with careful ad hoc consideration of victim
safety in order to determine how to proceed in each case. This is the
best way to ensure that the equal protection of the laws will be
provided as required by the Fourteenth Amendment to the Constitution of
the United States.

(2.) See Giving Batterers Their Due: Two Vital Bills Aimed at
Curbing Domestic Violence Could Get Lost in Shuffle, L.A. TIMES, Aug.
27, 1992, at B6 (calling a brush with the law the only thing batterers
take seriously, and pointing out the decrease in violence after arrest).

(3.) U.S. CONST. amend. XIV, [sections] 1.

(4.) 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW
[sections] 2239, at 243 (1961).

(8.) Amy Eppler, Battered Women and the Equal Protection Clause:
Will the Constitution Help Them When the Police Won't?, 95 YALE
L.J. 788, 791 (1986).

(9.) See Cheryl Hanna, No Right To Choose: Mandated Victim
Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849,
1877 (1996) (arguing that we should focus on the societal as well as the
individual harm of domestic violence).

(10.) See Seymore, supra note 6, at 1071 (describing traditional
feminist critiques of the absence of law from the private sphere).

(12.) See KAREN DECROW, SEXIST JUSTICE 166 (1974) ("That the
court will not enter into the marital abode to set rules is more than a
respect for the privacy of citizens. It is also a tacit acknowledgment among male judges, male legislators, and male attorneys (most of whom
are husbands) that a husband should not be told how to treat his
wife.").

(23.) See Seymore, supra note 5, at 278 (arguing that refusal to
arrest and prosecute domestic abusers effectively decriminalizes
domestic abuse, and recommending that this approach be changed).

(24.) One study found that "[t]he wives asked police officers
to arrest their husbands in 82% of the incidents, but an arrest occurred
in only 14% of the incidents." Lee H. Bowker, Police Services to
Battered Women: Bad or Not So Bad?, 9 CRIM. JUST. & BEHAV. 476,
485-86 (1982). When there is an arrest, 60% to 80% of domestic violence
cases are dropped. See EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC
VIOLENCE: THE CRIMINAL JUSTICE RESPONSE 58 (1990). By comparison, only
25% of felony charges were dismissed in the seventy-five largest
counties in 1994. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF
JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 437 tbl.5.70 (1997).
When considering that domestic violence represents a high proportion of
all crime, the first figure seems likely to represent a particularly
sizable portion of the 25% in the latter figure.

(25.) See Hathaway, supra note 11, at 672 (discussing the law
enforcement system's reluctance to confront the issue of domestic
violence).

(27.) See LISA G. LERMAN, PROSECUTION OF SPOUSE ABUSE: INNOVATIONS
IN CRIMINAL JUSTICE RESPONSE 25 (1981) (available from the Center for
Women Policy Studies, Washington, D.C.) ("Injuries which would be
grounds for arrest of a stranger assailant are often found insufficient
to justify arresting a man who beats his wife or girlfriend.").

(34.) See id. (arguing that prosecutors downplay domestic violence
crimes); see also, e.g., BUZAWA & BUZAWA, supra note 24, at 56
(citing a national study that found that a third of all misdemeanor
domestic violence charges would have been charged as felonies if
committed by a stranger).

(40.) Taylor, 642 So. 2d at 162 (quoting from the district court
opinion).

(41.) See id. at 166.

(42.) Seymore, supra note 6, at 1061.

(43.) See Hanna, supra note 9, at 1873-76.

(44.) For a more detailed account, see id. at 1874-76.

(45.) It is important to note the distinction between dropping a
case simply because the victim asks, as happened here, and dropping the
occasional ease where it is determined that going forward would place
the victim in immediate life-threatening danger. In certain extreme
eases, methods other than prosecution may be safest. Such determinations
should be made conservatively, however, and only by domestic violence
experts working in conjunction with prosecutors within a regime where
no-drop is the norm, and such a case is the exception.

(46.) See Culliton, supra note 26, at 537 (arguing that U.S. law is
so bad for victims of domestic violence that they should turn to
international human rights courts to intervene).

(47.) 642 So.2d at 166.

(48.) Id.

(49.) Because it is such a difficult and controversial issue,
feminists are split as to whether no-drop prosecution is the best method
for dealing with the domestic violence epidemic. See Seymore, supra note
6, at 1066-79 (discussing feminist theory and domestic violence).

(53.) See id. at 1042. The phenomenon of learned helplessness was
first discovered by Martin Seligman through tests with dogs. He gave one
set of dogs electric shocks that were inescapable, and no shocks to
another set. He then gave both sets of dogs shocks that were escapable.
Only those dogs that had not previously received the inescapable shocks
managed to escape. The others barely even tried, although they were
suffering the same pain. See MARTIN E.P. SELIGMAN, HELPLESSNESS: ON
DEPRESSION, DEVELOPMENT, AND DEATH 21-25 (1975).

(54.) See Seymore, supra note 6, at 1043; see also Corsilles, supra
note 31, at 871 ("[W]here the woman has no income independent of
the batterer, the decision to continue prosecution may result in
destitution for the entire family.").

(55.) It is important to note that this fear is greatly reduced
when the victim herself does not control the case, as she is less likely
to be blamed for any resulting punishment.

(58.) See Hanna, supra note 9, at 1887-88 (discussing the effect of
incarceration).

(59.) See Corsilles, supra note 31, at 877; see also Lawrence W.
Sherman & Richard A. Berk, The Minneapolis Domestic Violence
Experiment, 1 POLICE FOUND. REP. 1, 1 (1984)("[A]rrest was the most
effective of three standard methods police use to reduce domestic
violence. The other police methods--attempting to counsel both parties
or sending assailants away from home for several hours--were found to be
considerably less effective in deterring future violence....").

(60.) See Boxall & Muir, supra note 35, at Al.

(61.) Mark Hansen, New Strategy in Battering Cases: About a Third
of Jurisdictions Prosecute Even without Victim's Testimony, 81
A.B.A. J., Aug. 1995, at 14.

(62.) See Hanna, supra note 9, at 1863 (discussing the "soft
no-drop policies" in effect in most no-drop jurisdictions, where
prosecutors work closely with such victim advocates and do not always
actually prosecute).

(68.) See HOUSE RECORD, supra note 56, at H8783 ("For many
families trying to escape a life of violence, [support programs] have
meant the difference between hope and despair.") (statement of Rep.
Slaughter).

(71.) See id. ("[T]here are usually strict limitations to
prosecutorial discretion to drop charges except for demonstrated failure
of evidentiary support.").

(72.) The victim may be compelled to testify if she is in a
jurisdiction where there is an exception to the spousal testimonial
privilege for crimes against the spouse.

(73.) Corsilles, supra note 31, at 858.

(74.) Id. at 858-59.

(75.) See id. at 854 n.7 (citing several studies).

(76.) See id. at 857 n.22.

(77.) See Hansen, supra note 61 (citing the San Diego City
Attorney's Office). It is important to note that in implementing
its new no-drop policy, San Diego had the support of a new domestic
violence unit in its police department. The policy's success
underscores the value of having all parts of the legal system cooperate
to fight domestic violence.

(78.) See Seymore, supra note 5, at 250-51 (arguing that the
spousal privilege itself is bad for marital harmony).

(79.) See Seymore, supra note 6, at 1078-79 (discussing the results
of her own study).

(85.) See Seymore, supra note 6, at 1078 (concluding this based on
interviews with domestic violence victims); see also Angela West,
Prosecutorial Activism: Confronting Heterosexism in a Lesbian Battering
Case, 15 HARV. WOMEN'S L.J. 249, 255-56 (1992) ("I believe
that the victim is empowered by seeing the defendant prosecuted....
Seeing the abuser in a position of social disapproval may be the first
step toward realizing that there is help available.").

(86.) See Corsilles, supra note 31, at 881 ("By dismissing
cases simply because a victim requests it, prosecutors allow batterers
to extend their power and control into the courtroom.").

(87.) See, e.g., Hanna, supra note 9, at 1865-66 (outlining the
argument that a no-drop policy may revictimize or punish the victim).

(88.) See Seymore, supra note 5, at 251 (arguing against the
marital harmony justification for the spousal testimonial privilege).

(89.) WALKER, supra note 51, at xv.

(90.) See Seymore, supra note 5, at 256 ("[T]he court puts the
burden on the woman for going through with the charges, which gives the
batterer a wedge to use.").

(91.) Corsilles, supra note 31, at 868.

(92.) See Seymore, supra note 6, at 1064 ("The [spousal
privilege] rule leaves the wife to be manipulated by her husband and his
attorney into invoking her privilege not to testify.").

(93.) See State v. Taylor, 642 So.2d 160, 166 (La. 1994)
("Fear, self-blame, and other emotional factors often leave a
battered spouse unable to make a sound judgment as to whether to testify
against an abusive spouse. Exercise of the spousal witness privilege may
be the result of coercion, fear, subjugation, or undue influence,
perhaps not even consciously recognized by the abused spouse in some
circumstances."); Steven Goode & M. Michael Sharlot, Article V:
Privileges, 30 HOUS. L. REV. 489, 561-62 (1993) (updated by Cathleen C.
Herasimchuk) (citing several studies which found that abused women are
hardly ever in the best position to make these decisions). This is not
to say that there are not cases in which domestic violence victims
correctly believe that their lives are at risk if their batterer is
prosecuted. Such cases must be weeded out and dealt with through the aid
of victim advocates.

(94.) See Asmus et al., supra note 17, at 149 ("Understanding
battering as a system of coercive and abusive behaviors that compels its
victim to submit to the abuser and act on his behalf emphasizes the
necessity of developing a comprehensive response by the legal
system.").

(95.) See Hanna, supra note 9, at 1865 ("[Pro-prosecution
advocates] contend that the batterer has less incentive to try to
control or intimidate his victim once he realizes that she no longer
controls the process.").

(98.) See Riley, supra note 81 ("If the goal is to hold the
accused accountable, then it's simply not the logical extension to
jail the victim instead of the abuser.") (quoting attorney Lisa
Lehrman).

(99.) See Seymore, supra note 5, at 258-59 ("[T]he Committee
reported that no ... contempt charges have resulted against unmarried
victims where no privilege existed.").

(100.) See Hanna, supra note 9, at 1892 ("In most cases, such
extreme sanctions will probably not be necessary. Once the existence of
a mandated participation policy is common knowledge, women will be much
more likely to cooperate."); Sam Howe Verhovek, Athlete and Legal
Issue on Trial, N.Y. TIMES, Feb. 19, 1996, at A8 ("Prosecutors in
Texas and elsewhere say that while the threat behind the law is an
effective means of persuading a battering victim to testify, it has
extremely rarely resulted in a case where such a person has been jailed
for refusing to testify.").

(104.) See Hanna, supra note 9, at 1897 ("[P]eople call the
police because they are in crisis and need protection.").

(105.) See id. ("[N]eighbors, children, or other people in the
household, rather than the victim herself, often initiate the 911
call.").

(106.) The spousal testimonial privilege at issue in this note is
that which makes a spouse incompetent to, or allows a spouse to refuse
to, testify against his or her spouse during their marriage. This
applies to any type of negative testimony, and is only in force while
the two are married. This note does not address the marital confidential
privilege, which prevents, against his or her will, a person from
testifying ever, even after the marriage is over, regarding statements
of his or her spouse or former spouse that were made in confidence
during the marriage. See GRAHAM C. LILLY, AN INTRODUCTION TO THE LAW OF
EVIDENCE [subsections] 9.3, 9.4 (2d ed. 1987) (discussing the common law
marital privileges).

(109.) See Seymore, supra note 5, at 257-58 (explaining that many
prosecutors, even in no-drop jurisdictions, are forced to drop charges
because it is so difficult to bring a strong case when the victim
asserts the privilege).

(110.) See Seymore, supra note 6, at 1033 (trying to explain the
reluctance of police and prosecutors to deal with domestic violence).

(112.) The unbracketed portion is quoted from the Supreme
Court's recommended Rule 505, which was not enacted by Congress,
see FED. R. EVID. 505, but many states have adopted similar language.
See, e.g., CAL. EVID. CODE [sections] 972(e)(1), (2). The bracketed
portion is mine.

(113.) See Hanna, supra note 9, at 1857 ("A proper
investigation can reduce the likelihood that the victim will ever have
to take the stand.").

(114.) Id. at 1899.

(115.) See id. at 1900 ("[V]ictims of domestic violence often
understate the situation, try to protect the batterer, or blame
themselves for the violence.").

(116.) Boxall & Muir, supra note 35, at A1.

(117.) See, e.g., Hansen, supra note 61, at 14 (describing a case
in which a man was convicted of assaulting his girlfriend despite her
testimony that he had not hit her).

(118.) See Corsilles, supra note 31, at 874 ("Prosecutors, who
can no longer cite `victim noncooperation' as a legitimate reason
to dismiss a case, have learned to prosecute cases without the benefit
of victim testimony.").

(119.) See id. at 877.

(120.) Id.

(121.) See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,
699-700 (9th Cir. 1990) ("There is, in general, no constitutional
duty of state officials to protect members of the public at large from
crime.") (citing Martinez v. California, 444 U.S. 277, 284-85
(1980)).

(122.) See Watson v. City of Kansas City, 857 F.2d 690, 694 (10th
Cir. 1988) ("Although there is no general constitutional right to
police protection, the state may not discriminate in providing such
protection.").

(123.) See Smith v. Ross, 482 F.2d 33, 36-37 (6th Cir. 1973)
("A law enforcement officer can be liable under [sections] 1983
when by his inaction he fails to perform a statutorily imposed duty to
enforce the laws equally and fairly, and thereby denies equal
protection....").

(124.) See Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)
(invalidating facially neutral laws applied with an "unequal
hand"); see also Arlington Heights v. Metropolitan Hous. Dev.
Corp., 429 U.S. 252, 266 (1977) ("Sometimes a clear pattern ...
emerges from the effect of the state action even when the governing
legislation appears neutral on its face."); Hoots v. Pennsylvania.,
672 F.2d 1107, 1114 (3d Cir. 1982) (holding that when official action
affects one race or class differently from another, discriminatory
intent can be inferred).

(127.) See Arlington Heights, 429 U.S. at 265-66 (construing
Washington v. Davis, 426 U.S. at 229).

(128.) See Watson v. City of Kansas City, 857 F.2d 690, 694 (10th
Cir. 1988) ("[T]o survive summary judgment, the plaintiff must go
beyond her pleadings and show that she has evidence of specific facts
that demonstrate that it is the policy or custom of the defendants to
provide less police protection to victims of domestic assault than to
other assault victims.").

(136.) See Craig v. Boren, 429 U.S. 190, 197 (1976) ("To
withstand constitutional challenge ... classifications by gender must
serve important governmental objectives and must be substantially
related to achievement of those objectives.").

(137.) 442 U.S. 256 (1979).

(138.) Id. at 274.

(139.) Id.

(140.) Id. at 275.

(141.) See id.

(142.) See id.

(143.) See notes 4-22 supra and accompanying text for a discussion
of the historical background behind the treatment of domestic violence.

(144.) Feeney, 442 U.S. at 274.

(145.) See id. at 275.

(146.) Id. at 279.

(147.) Craig v. Boren, 429 U.S. 190, 198 (1976) (citations omitted)
(striking down an Oklahoma law providing a different drinking age for
men and women).

(148.) 458 U.S. 718 (1982) (invalidating the exclusion of men from
a state nursing school).

(149.) Id. at 729.

(150.) Id. at 726.

(151.) A seemingly arbitrary classification that is not based on a
suspect class is subject to "rational relationship" scrutiny,
which requires the defendant to articulate a legitimate reason for the
disparate treatment. See City of Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 440-42 (1985).

(152.) See, e.g., Watson v. City of Kansas City, 857 F.2d 690,
696-97 (10th Cir. 1988) (holding that sufficient evidence had been
presented for a jury to find that domestic violence victims were
provided with less police protection than others).

(166.) See McFarlane, supra note 129, at 934 ("Suits charging
that police department policies have deprived plaintiffs of equal
protection of the laws have been the most consistently successful type
of domestic violence failure-to-protect claims.").

(167.) See Perrino v. City of Newton Falls, No. 91-4023, 1992 WL
197328, at *6 (6th Cir. Aug. 14, 1992) (holding that although the
plaintiff "adequately had pleaded a constitutional violation by
alleging that the prosecutor's actions were pursuant to an official
policy of denying domestic violence victims the equal protection of the
law," she had failed to select the correct defendant, and therefore
upholding summary judgment against her with some reservation).

(168.) See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,
701-02 (9th Cir. 1990) (reversing the dismissal of a claim that poor
police protection violated equal protection and holding that if the
alleged facts were found to be true, relief would be appropriate).

(169.) See Watson v. City of Kansas City, 857 F.2d 690, 695 (10th
Cir. 1988) (reversing summary judgment for the defendants in a claim
that a domestic abuse victim's rights to equal protection of the
laws were violated when the city failed to provide victims of domestic
violence with the same police protection as victims of nondomestic
violence).

(170.) See Thurman v. City of Torrington, 595 F. Supp. 1521,
1528-29 (D. Conn. 1984) (holding that the plaintiff had properly stated
a claim of a violation of the Fourteenth Amendment's Equal
Protection Clause when she complained that police officers used an
administrative classification that treated assaults differently if they
took place in a domestic relationship, and finding that such a policy
was based upon the impermissible stereotypic view that it is acceptable
for husbands to physically abuse their wives). Later, a jury awarded
Thurman $2.3 million. See Officers Must Pay $2.3 Million to Wife Maimed by Husband, N.Y. TIMES, June 26, 1985, at B6.

(171.) Dudosh v. City of Allentown, 722 F. Supp. 1233, 1235-36
(E.D. Pa. 1989) (holding that the plaintiff had established an equal
protection claim by asserting that the police responded less to domestic
assaults than to nondomestic assaults).

(176.) Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting
United States v. Batchelder, 442 U.S. 114, 125 (1979)) upholding a
conviction for failing to register for the draft against an equal
protection challenge).

(184.) Specifically, prosecutors have an ethical duty to proceed
only in those cases in which they believe they can prove the requisite
elements. This creates an ethical as well as legal mandate for
prosecutors to go forward in the vast majority of domestic violence
cases before them. Interview with Sarah M. Buel, Clinical Professor at
the University of Texas School of Law (March 1999).

(185.) 857 F.2d 690 (10th Cir. 1988).

(186.) See id. at 695.

(187.) Id. at 692-93.

(188.) See, e.g., Hathaway, supra note 11, at 691 ("It is
crucial, therefore, that victims who do seek assistance from the police
and the courts are able to obtain protection.").

(189.) Hanna, supra note 9, at 1890.

(190.) Id. at 1891.

(191.) Id. at 1882.

(192.) See State v. Brown, 381 A.2d 1231, 1232 (N.J. Super. Ct.
App. Div. 1977) ("[A] victim cannot consent to the infliction of an
atrocious assault and battery on his person and thus effectively bar the
prosecution of his attacker."); People v. Gray, 36 Cal. Rptr. 263,
265 (Cal. Dist. Ct. App. 1964) ("[I]t is no defense to assert that
the victim consented to an assault upon her....").

(193.) See Hanna, supra note 9, at 1892 ("A weak prosecution
encourages violence if the batterer knows he will not be held
accountable.").

(194.) See notes 69-120 supra and accompanying text.

(195.) Eppler, supra note 8, at 795.

(196.) See Culliton, supra note26, at 508.

(197.) Corsilles, supra note 31, at 865.

(198.) Id. at 866.

Kalyani Robbins, J.D., Stanford Law School, 1999; B.A., University
of California at Berkeley, 1995. Articles Editor, Volume 51, Stanford
Law Review. Associate at McCutchen, Doyle, Brown & Enersen in San
Francisco. Law Clerk to the Honorable Norman H. Stahl, United States
Court of Appeals for the First Circuit, 2000-2001. I wish to thank Sarah
M. Buel, University of Texas School of Law Clinical Professor and
Co-Director of the University of Texas Domestic Violence Clinic, for her
generous feedback on an earlier draft, and for sharing her thoughts
regarding some of the issues that arose in this piece. Her input
strengthened the piece--its remaining weaknesses are mine alone.

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